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U.S.

Department of Labor Administrative Review Board


200 Constitution Avenue, N.W.
Washington, D.C. 20210

IN THE MATTER OF

WILLIAM DAVID SIMMONS CASE NOS. 93-ERA-5

COMPLAINANT, 95-ERA-41

v. DATE: May 30, 1996

ARIZONA PUBLIC SERVICE CO./


ARIZONA NUCLEAR POWER PROJECT

RESPONDENTS.

BEFORE: THE ADMINISTRATIVE REVIEW BOARD1

FINAL ORDER APPROVING SETTLEMENT


AND DISMISSING COMPLAINTS

This case arises under the employee protection provision the Energy Reorganization Act, 42
U.S.C. § 5851, and the regulations at 29 C.F.R. Part 24 (1993). The Administrative Law Judge
(ALJ) issued a Recommended Order of Dismissal on April 3, 1996 in Case No. 93-ERA-5,
recommending approval of a Settlement Agreement reached by the parties and dismissal of the
complaint with prejudice. The Settlement Agreement also concerns Case No. 95-ERA-41 which
is presently pending the Board's review of a Recommended Decision and Order issued January
18, 1996, recommending dismissal of that case.

The parties submitted a joint motion before the Board, requesting review of the Settlement
Agreement as it pertains to both cases. In the interest of judicial economy and in order to
effectuate the intent of the parties, we agree to do so.

Because the request for approval is based on an agreement entered into by the parties, we
must review it to determine whether the terms are a fair, adequate and reasonable settlement of

1
April 17, 1996, the Secretary of Labor redelegated authority to issue final agency
decisions under, inter alia, the Energy Reorganization Act and its implementing regulations to
the newly created Administrative Review Board. Secretary's Order 2-96 (Apr. 17, 1996), 61 Fed.
Reg. 19978, May 3, 1996 (copy attached).

Secretary's Order 2-96 contains a comprehensive list of the statutes, executive order, and
regulations under with the Administrative Review Board now issues final agency decisions. A
copy of the final procedural revisions to the regulations (61 Fed. Reg. 19982), implementing this
reorganization is also attached.
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the complaints. 29 C.F.R. § 24.6(b); Macktal v. Secretary of Labor, 923 F.2d 1150, 1153-54 (5th
Cir. 1991); Thompson v. U.S. Dep't of Labor, 885 F.2d 551, 556 (9th Cir. 1989); Fuchko and
Yunker v. Georgia Power Co., Case Nos. 89-ERA-9, 89-ERA-10, Sec. Ord., Mar. 23, 1989, slip
op. at 2.

The Settlement Agreement appears to encompass the settlement of matters arising under
various laws, beyond those encompassed by the above referenced statutes. See Settlement
Agreement, Preamble; ¶ 3.4. For the reasons set forth in Poulos v. Ambassador Fuel Oil Co.,
Inc., Case No. 86-CAA-1, Sec. Ord., Nov. 2, 1987, slip op. at 2, we have limited our review of
the Settlement Agreement to determining whether its terms are a fair, adequate and reasonable
settlement of Complainant's allegations that Respondent violated the ERA.

The Settlement Agreement requires the Complainant and Respondent to keep the terms of the
Settlement Agreement confidential. See ¶¶ 3.1 to 3.6. The Secretary has previously held in a
number of cases with respect to confidentiality provisions in settlement agreements that the
Freedom of Information Act (FOIA) "requires agencies to disclose requested documents unless
they are exempt from disclosure. . . ." Plumlee v. Alyeska Pipeline Service Co., Case Nos.
92-TSC-7, 10; 92-WPC-6, 7, 8, 10, Sec. Final Ord. Approving Settlements and Dismissing
Cases with Prejudice, Aug. 6, 1993, slip op. at 6.

The records in these cases are agency records which must be made available to the public
under the FOIA. Department of Labor regulations provide specific procedures for responding to
FOIA requests, for appeals by requesters from denials of such requests, and for protecting the
interests of submitters of confidential commercial information. See 29 C.F.R. Part 70 (1994).2

We find that the Settlement Agreement, as here construed, is a fair, adequate and reasonable
settlement of the complaint. Accordingly, we APPROVE the settlement and DISMISS the
complaints in Case Nos. 93-ERA-5 and 95-ERA-41 with prejudice. Settlement Agreement at ¶¶
1.1, 1.2.

SO ORDERED.
KARL J. SANDSTROM
Presiding Member

JOYCE D. MILLER
Alternate Member

2
Pursuant to 29 C.F.R. § 70.26(b), submitters may designate specific information as
confidential commercial information to be handled as provided in the regulations. When FOIA
requests are received for such information, the Department of Labor will notify the submitter
promptly, 29 C.F.R. § 70.26(c); the submitter will be given a reasonable amount of time to state
its objections to disclosure, 29 C.F.R. § 70.26(e); and the submitter will be notified if a decision
is made to disclose the information, 29 C.F.R. § 70.26(f). If the information is withheld and a
suit is filed by the requester to compel disclosure, the submitter will be notified, 29 C.F.R.
§70.26(h).
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